Panel Presentation by Andrew Begg, First Secretary Mission of New Zealand to UNHQ in New York City

(Andrew Begg is the first secretary of the New Zealand Commission to the United Nations in New York City. Andrew has been a participant at all of the Ad Hoc Committee meetings, as well as the Working Group meetings. He has a law degree from the University of Victoria in Wellington, New Zealand. He worked in the New Zealand Parliament for two years and then joined the Foreign Ministry in 1998, as an international lawyer. He was posted to New York in 2002)

Thank you very much, Steve, and I do want to thank the Council of Canadians with Disabilities for the invitation to talk to this meeting. I am very happy to be here, and very happy to see Ottawa in the winter. I have been here in summer, and wanted to see the snow.

Canada and New Zealand have had a very long history of close cooperation at the United Nations, across the board of most multilateral issues. With Australia, we form a very close group. We recognize this as a cohesive unit with similar values and very similar values. We tend to pool our resources to get the maximum leverage out of negotiations.

That's no more true than for the process leading towards the disability negotiations. New Zealand has been chairing the negotiations. We have been doing so with the very close cooperation of Canada. We tend to consult with the Canadian delegation on most issues.

I thought what I would do, as I have the luxury of being the first speaker, is to set these negotiations in the context of the wider international human rights law framework. This convention will not stand alone by itself. It will be a part of the greater body of international human rights law. All of the international treaties are read together and they reinforce each other. I want to put the convention in context and perhaps outline where we are in the process, so when are you looking at the individual articles during the next two days, you can keep in mind where exactly these articles and the provisions in them fit in the bigger picture.

If any of you are experts in human rights or know the framework very well, I apologize. I might bore you for the first ten minutes, but it is always useful to remind ourselves of the context in which we are working.

Basically, one of the main principles to remember is that people with disabilities already have the same human rights as everyone else. The Universal Declaration of Human Rights, which is the founding human rights document, says everyone has the right to be free from discrimination. Everyone means everyone, regardless of any status. There is a list of grounds of non-discrimination that include sex, national origin, ethnicity, race, religion, but it says at the end of that list, or any other status. Very clearly, that includes disabilities. It includes sexual orientation. It includes all the sorts of other grounds of discrimination that may not have been spelled out in 1948 but are very clearly recognized as grounds for discrimination nowadays.

The Universal Declaration was followed a few years later by the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. Those are also documents that say what all people have the right to, or what all people have the right to be free from. However, it is very clear that these rights have not been universally applied to all people. Some groups have tended to be a lesser priority for governments for enforcement of their rights over the years. That problem was very quickly recognized so that following on from those two conventions we had a convention on discrimination against women, and even before they were concluded there was a convention on the elimination of racial discrimination. So very early, it was recognized that some groups of people who suffer from discrimination needed to have their own specific conventions to spell out in more detail the rights that applied to those groups.

People with disabilities were left out of that process, until very recently. When the issue of a convention for the rights of people with disabilities was raised, the usual response from governments was that this is not necessary. People with disabilities already have rights under the existing legal framework. There is no need for a separate treaty.

However, clearly, that view is no longer the prevailing view. We would have to attribute the tenacious and persuasive lobbying efforts by NGOs and disabled people's organizations, over many, many years for changing the opinion of governments. A few of us were in the front but most governments have come round to the idea now that the existing framework has not delivered the guarantees of human rights to people with disabilities as it was supposed to have done and for that reason a specific treaty is needed.

That treaty will fit into the existing human rights framework. The treaty does not create new human rights. There are not any new human rights in this convention. The human rights of people with disabilities are the same as everyone else, and they are in the international Bill of Rights. What this treaty does is focus on the rights that have been routinely violated or neglected for people with disabilities, and firstly reaffirm that they do actually apply to people with disabilities-sets this out in black and white—and then, secondly, elaborates in greater detail than the existing treaties do, what steps are required to implement those rights.

For example, if we take the right to fair trial, there is not really very much in the draft disabilities convention on the right to a fair trial because that is a right that has not been routinely violated per se for people with disabilities. There are plenty of problems in terms of accessibility of courtrooms, trial proceedings not being done in sign language or in accessible modes of communication, but in terms of the basic fundamental elements of right to trial, such as the presumption of innocence, trial before a jury, having a trial without undue delay, those issues are not spelled out in this convention because they are not disability-specific. They are in the existing conventions.

There are many other rights that have been routinely violated and the convention focuses on those, for example, liberty and security of the person. The draft disabilities convention goes in far greater detail than the existing treaties do, because of the long-standing problem for people with disabilities being denied that right. There are new articles on freedom from exploitation, violence and abuse, given the history of what has gone on in residential institutions and even sometimes in families. There is also a new article on protecting people with disabilities from forced medical treatment, which has also been a part of the historical problem. Those articles go into much greater detail than the existing treaties.

Another example is article 16 of the Covenant on Civil and Political Rights, which says that every person shall have recognition everywhere as a person before the law. That is a very simple statement, and that is as far as the Covenant on Civil and Political Rights goes. In some countries, people with disabilities are denied legal capacity, even on account of deafness or blindness. If you are blind, you are no longer a legal person: you do not have the capacity to sign contracts, open bank accounts, and conduct business. Therefore, what the draft convention does is to go into much greater detail. Whereas the Covenant on Civil and Political Rights says, every person shall have the right to recognition as a person before the law, this draft convention says that States Parties reaffirm that people with disabilities have the right to equal recognition before the law. So firstly, it reaffirms that right.

Secondly, it goes into more detail than the existing provision in the covenant, and says that "States Parties recognize that people with disabilities must have legal capacity on an equal basis to others". The second step that says that it's essential there be non-discrimination in the application of the right. There should be no difference in the law between people with disabilities and people without disabilities.

It then contains another clause to go into some of the steps that may be required to implement the right, where some people with disabilities might need some assistance. The common reaction in most countries historically is to remove legal capacity completely and grant decision-making powers to somebody else— a guardian, a court or a power of attorney. Under this convention, the legal capacity remains with the person with disabilities. There is an allowance for there to be assistance in exercising that legal capacity, but the default is to leave the legal capacity with the person with disabilities. It spells out if assistance is needed, it shall be proportional to the degree of support required and tailored to the person's circumstances. The support must not undermine the legal rights of the person. It must respect the will and preferences of the person, and must be free from conflict and undue influence, and must also be subject to independent review, in appropriate cases.

So that's an example of the approach that the convention is taking to take that existing right, reaffirm that it applies, insist that the right is applied on the same basis as other people and then spell out in more detail what states must do to implement that right.

There is a danger in negotiating this treaty that when we do go through and spell out in greater detail what states must do to implement the rights of people with disabilities, that we may be tempted to tweak and change the existing rights. That would undermine our approach. What we are trying to do is reaffirm that people with disabilities have the same rights as others and they must be implemented. If we start to change the rights slightly, then what we are saying is that people with disabilities have a set of rights that are different from other people. That would be a problem for several reasons.

Firstly, the body of international human rights law must be consistent. There should not be competing standards, because the disabilities convention must be read consistently with the other treaties. Using the right to fair trial as an example, there is not a lot of detail about the right to fair trial in this convention. People with disabilities still need to turn to the Covenant on Civil and Political Rights for the basic elements of the right to a fair trial such as the presumption of innocence and trial without undue delay. What the disabilities convention is going to do is say that in the court system people with disabilities must be treated on an equal basis with others, that the court system must be accessible and that disability cannot be used as a justification to remove somebody's freedom and to put them in jail or a secure home, for example. Those elements are in this convention because they are disability specific. But the rest of the elements of the right to fair trial, such as the presumption of innocence, is not. To get the complete picture the disabilities convention and the Covenant will need to be read together.

The drafters of the disabilities convention have tried not to repeat every single provision of existing human rights treaties, unless there is a need to elaborate that provision in a disability context. Otherwise, the convention would be a hundred pages long. Essentially, what this convention will do is unlock the door to the other treaties, the other rights, so that people with disabilities can use this convention to access all of the other conventions and read them together.

Secondly, if we gave into the temptation to try to improve the rights in this convention over and above what we already have, in some cases we will win and in some cases we will lose. The problem is not so much that people with disabilities might end up with better rights, more effective rights, but that they might end up also with lesser rights. An example here is the right to marry and found a family. The Universal Declaration of Human Rights say that men and women have the right to marry and found a family and we have repeated that provision in this draft convention because that is one of the rights that has been routinely denied to people with disabilities.

There are some delegations, however, that suggested amending that right to say that it is subject to religious and social customs. When it comes to marriage and family relations at the UN, there is often a lot of controversy. Some delegations want to ensure that the right to marry is in the disabilities convention will be consistent with their own religions, their own social norms. But we all have different religions and social norms, and the Universal Declaration of Human Rights says that men and women have the right to marry and found a family "without any limitations due to race, nationality or religion". If we now had a convention on the rights of people with disabilities that says people with disabilities have the right to marry and found a family "in accordance with religious and social customs", then that means people with disabilities suddenly have a lesser right than they had before. Before there was no restriction, now there is, which is a very clear reason why we need to be careful to make sure this convention is very consistent with the existing rights.

Now, I will wrap up very quickly. But first I want to cover one other feature of this convention that we need to keep in mind when negotiating the standards. This is essentially a hybrid convention. There are two sets of human rights: civil and political rights are in the Covenant on Civil and Political Rights, and economic and social rights are in the Covenant on Economic, Social and Cultural Rights. They were separated out in the beginning because it was understood that there were two slightly different standards of implementation. Civil and political rights are immediately binding. Governments must guarantee them straight away, as soon as they ratify the treaty. Economic, social and cultural rights are rights that governments are not in a position to guarantee immediately; that is, the right to education, the right to health, the right to social security, the right to work. Health and education, for example, are very expensive and not every country, not even very rich ones, are able to guarantee immediately that every single person has access to health and education.

"Progressive realization". That means that those rights must be progressively implemented. But it is not a get out of jail free card for governments. There are still two important elements of the rights that are immediately binding. Firstly, governments must ensure that those rights are applied on a non-discriminatory basis. If there is a lack of means and education cannot be guaranteed for all, it must at least be guaranteed on a non-discriminatory basis as far as it is provided. Secondly, governments must undertake concrete steps to implement those rights. They cannot do nothing.

In this convention, both sets of rights are mixed up. That has only been done once before, in the Convention on the Rights of the Child. In that case, it was very easily dealt with, and the convention simply said that the civil and political rights in this convention must be implemented immediately, the economic and social and cultural rights must be implemented progressively. That is an important overriding principle of that treaty.

We would like to follow the same principle in this convention. The trouble is, when you take some of the civil and political rights and want to guarantee them for people with disabilities, it can get expensive. So there are some governments who are trying to build qualifiers into the civil and political rights in the convention, such as "in accordance with abilities", "according to means", or "subject to available resources". If you take the right to vote, for example, that is already absolute. It is a civil and political right. It is already immediately binding and applies to everybody, including people with disabilities. If the disabilities convention had a qualifier that says people with disabilities have the right to accessible voting booths "subject to available resources", suddenly governments can claim that they do not have the money, and people with disabilities have a lesser right than the one that already exists in the Covenants. Therefore, we are really trying to resist this instinct or impulse by governments to build into the treaty escape clauses.

The argument that is often put forward is that civil and political rights are commonly understood as mostly rights to be free: the right to be free from torture or arbitrary arrest, the right to be free from discrimination. These are seen as the government should not do things, therefore they are cheap and they can be implemented straight away. Economic and cultural rights such as the right to health and education require governments to do things. They can get expensive. My response to that is the right to a fair trial, for example, which is a civil and political right, requires a functioning justice system and that doesn't come cheap either. Therefore, that is not an excuse for governments to try to build this progressive realization idea into the civil and political rights of this convention.

So just to wrap up, those are some of the examples of the debates—the overarching debates—which we are having throughout the convention. We have the chair's text, which has been produced. The chair very much wants to complete an entire read through of this text. It came out a couple of months ago, and is the result of all of the discussions that have come before. The chair's intention is that we should complete a reading of the text in three weeks — we will have to work very hard. But if we can get through it, and agree on most of the text, that will just leave a few difficult issues that can be referred to the August meeting, and then we hope to be finished soon after.

We hope to see a revised text at the end of the January meeting. We will be putting out revised articles taking into account the discussions, as we proceed through January. At the end of the meeting, we will have a revised chair's text with some square brackets around the issues to be left for August. We hope in August we can almost complete the negotiations, because the need for this convention is very urgent. The sooner we finish the negotiations, the sooner we get on to the real work, which will be implementation. That will take us some time.

I will finish here. I do not want to take up any more time, but I am happy to take questions. Thank you very much.

9 December 2005